United States v. Albert Terrill Jones , 486 F. App'x 1 ( 2012 )

Case: 12-11095 Date Filed: 08/01/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11095
Non-Argument Calendar
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D.C. Docket No. 8:02-cr-00122-SCB-EAJ-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERT TERRILL JONES,
a.k.a. Berto,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(August 1, 2012)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
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Albert Jones pro se appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction based on Amendment 750 of the
Sentencing Guidelines. After review, we affirm.
Under § 3582(c)(2), a district court has the authority to modify a
defendant’s term of imprisonment if the defendant’s sentence was “based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. [§] 994(o).” 18 U.S.C. § 3582(c)(2); see also
U.S.S.G. § 1B1.10(a)(1). However, if the retroactively applicable amendment
does not lower the defendant’s applicable guidelines range, a sentence reduction
under § 3582(c)(2) is not authorized. See U.S.S.G. § 1B1.10(a)(2)(B).1
In 2003, a jury convicted Jones of one count of conspiracy to possess with
intent to distribute 5 kilograms or more of powder cocaine, 50 grams or more of
crack cocaine and 100 kilograms or more of marijuana. At sentencing, the district
court found that Jones’s offense involved 15 kilograms of powder cocaine. Under
the then-applicable guidelines, Jones’s 15 kilograms of powder cocaine converted
to 3,000 kilograms of marijuana. See U.S.S.G. § 2D1.1, cmt. n.10, Drug
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We review a district court’s decision whether to reduce a sentence pursuant to
§ 3582(c)(2) for abuse of discretion. See United States v. Webb, 565 F.3d 789, 792 (11th Cir.
2009). We review “de novo the district court’s legal conclusions regarding the scope of its
authority under the Sentencing Guidelines.” Id. (quotation mark omitted).
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Equivalency Tables (2002). In addition, Jones’s 50 grams of crack cocaine
converted to 1,000 kilograms of marijuana. See id. At sentencing, Jones was held
accountable for a total of 4,100 kilograms consisting of: (1) 3,000 kilograms
equivalent for the powder cocaine; (2) 1,000 kilograms equivalent for the crack
cocaine; and (3) 100 kilograms of marijuana. The district court set Jones’s base
offense level at 34, because the offense involved a marijuana equivalent of at least
3,000 kilograms but less than 10,000 kilograms. See U.S.S.G. § 2D1.1(c)(3)
(2002). Thus, the powder cocaine and marijuana alone triggered the level 34 even
without regard to the crack cocaine.
In 2011, Amendment 750, among other things, changed the marijuana
equivalency for 1 gram of crack cocaine from 20 kilograms of marijuana to 3,571
grams of marijuana. See U.S.S.G. app. C, amend. 750, Reason for Amendment
(noting that Amendment 750 made permanent Amendment 748’s temporary,
emergency amendment that modified the marijuana equivalency for crack
cocaine). Jones then moved for a § 3582(c)(2) sentence reduction based on
Amendment 750, and the district court denied the motion.
We find no reversible error in the district court’s denial of Jones’s
§ 3582(c)(2) motion. Although Amendment 750 changed the marijuana
equivalency for crack cocaine, it did not change the marijuana equivalency for
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powder cocaine. Nor did Amendment 750 alter the base offense level of 34
applicable to a defendant who is accountable for at least 3,000 kilograms of
marijuana. Both at the time of Jones’s 2003 sentencing and now, 1 gram of
powder cocaine is equal to 200 grams of marijuana. See U.S.S.G. § 2D1.1, cmt.
n.10(D) (2012). Therefore, the marijuana equivalency of the powder cocaine
involved in Jones’s offense remains 3,000 kilograms. And, both then and now,
this 3,000 kilogram amount, alone, qualified Jones for a base offense level of 34.
See U.S.S.G. § 2D1.1(c)(3) (2012). Thus, even though Amendment 750 changed
the marijuana equivalency for Jones’s crack cocaine amount, it had no effect on
Jones’s base offense level and did not lower his applicable guidelines range.2
To the extent Jones challenges the district court’s finding at sentencing that
Jones’s offense involved 15 kilograms of powder cocaine (converted to 3,000
kilograms of marijuana equivalency), his argument is outside the scope of a
§ 3582(c)(2) proceeding. See 18 U.S.C. § 3582(c)(2) (limiting proceedings to
cases in which a retroactive guidelines amendment affects the applicable
2
This is not Jones’s first § 3582(c)(2) motion. In 2008, Jones filed his first § 3582(c)(2)
motion, based on Amendment 706, which reduced the base offense levels for crack cocaine
offenses. Under the mistaken belief that Jones’s base offense level was derived from the amount
of crack cocaine involved, the district court granted Jones’s motion and reduced his 300-month
sentence to 243 months. Jones appealed the new sentence on other grounds. While Jones’s
appeal was pending, the district court discovered its mistake and held a hearing on the issue, but
ultimately concluded that it lacked jurisdiction to rectify its mistake.
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sentencing range); United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005)
(explaining that, because § 3582(c)(2) does not provide a basis for a de novo
resentencing, Supreme Court decisions by themselves do not provide § 3582(c)(2)
relief because they are not retroactively applicable guidelines amendments);
United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (explaining that all
original sentencing determinations remain unchanged except the guideline range
affected by the amendment)t. Likewise, Jones’s claim that the Fair Sentencing
Act’s reduced statutory mandatory minimum should apply retroactively to him is
not cognizable in a § 3582(c)(2) proceeding. See 18 U.S.C. § 3582(c)(2). In any
event, Jones’s sentence was not based on a statutory mandatory minimum, but was
calculated under the sentencing guidelines.
For all these reasons, the district court did not abuse its discretion in
denying Jones’s § 3582(c)(2) motion.
AFFIRMED.
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